Garner v Leitchville Transport Pty Ltd
[2018] VCC 123
•23 February 2018
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-12-02872
| IVOR EDWARD GARNER | Plaintiff |
| v | |
| LEITCHVILLE TRANSPORT PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 29 and 30 June 2017 | |
DATE OF JUDGMENT: | 23 February 2018 | |
CASE MAY BE CITED AS: | Garner v Leitchville Transport Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 123 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – physical injury – chronic pain – injury to the plaintiff’s back – pain and suffering damages – loss of earning capacity damages – aggravation of injury to lower back – subsequent injury to lower back – whether consequences satisfy the threshold statutory test
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
Judgment: Application for serious injury certificate for pain and suffering damages is granted. The application for loss of earning capacity certificate is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Scanlon QC with Ms M Lang | Arnold Dallas & Macpherson |
| For the Defendant | Mr P B Jens QC with Mr J L Batten | IDP Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff commenced this application by Originating Motion dated 8 June 2012.
2 In figurative terms, this application requires the Court to unscramble the omelette of the plaintiff’s many insults to his physical health. In that process, the Court is required to produce what would be described as four whole eggs representing each of the four significant injuries the plaintiff has suffered over his working life and the consequences of each of those injuries to him.
3 The four significant injuries or events suffered by the plaintiff in the course of his working life are as follows:
(a) On 26 May 1997, the plaintiff was injured when he fell whilst working for Neil’s Transport Pty Ltd. The plaintiff received injuries to his right leg and lower back (“the first injury” – the first egg);
(b) On 1 July 2005, the plaintiff was injured whilst unloading a box containing metal rails from a semitrailer. The plaintiff was working for the defendant in this application. This injury is the subject of this application. The plaintiff suffered an injury to his back in this incident (“the second injury” – the second egg);
(c) On 20 June 2011, the plaintiff was working as a truck driver for Linebac Pty Ltd. In the course of his employment, he was struck in the back by a handle attached to a curtain of a Tautliner trailer. The injury was to his back (“the third injury” – the third egg);
(d) In April 2017, the plaintiff suffered the last of a series of strokes. The plaintiff had previously, in 2012, been undergoing rehabilitation and retraining at Coles Express as a console operator. During the course of that retraining, the plaintiff suffered a stroke. He has not returned to any form of employment since that time (“the fourth injury” – the fourth egg).
4 The application for serious injury certification in this proceeding relates to injury to the plaintiff’s back suffered in the second injury.
5 The plaintiff was injured in the course of his employment with the defendant, Leitchville Transport Pty Ltd.
6 The plaintiff sought leave to bring proceedings for pain and suffering damages and loss of earning capacity damages.
7 In his written submissions filed on 14 July 2017, the plaintiff, whilst not formally abandoning his claim for economic loss, did not seek to address the Court in relation to his economic loss claim. In those circumstances, this decision will be directed to determining whether the plaintiff has suffered a serious injury on a pain and suffering only basis as a result of the second injury.
8 The evidence led in this case does not allow for a successful claim for a loss of earning capacity certification for serious injury.
9 The plaintiff gave evidence and was cross-examined in this proceeding. There were no medical practitioners called to give evidence in this case.
10 The following evidence was tendered:
·The plaintiff tendered the following documents:
§Exhibit A, the Plaintiff’s Court Book (“PCB”), pages 5 – 13 inclusive; pages 17 – 129 inclusive;
§Exhibit B, the Cohuna Medical Clinic notes for 17 June 2007, 5 July 2007 and 9 August 2008.
·The defendant tendered the following documents:
§Exhibit 1, the Defendant’s Court Book (“DCB”), pages 1 – 106 inclusive, pages 108 – 116 inclusive;
§Exhibit 2, Cohuna Medical Clinic letter dated 19 May 2015;
§Exhibit 3, Cohuna Medical Clinic notes dated 23 October 2007;
§Exhibit 4, Wyndham Medical Clinic notes dated between December 2008 and June 2011.
11 Mr Jens QC, on behalf of the defendant, identified the following matters as issues in this application for serious injury by the plaintiff.
12 The first issue was that the plaintiff had suffered a significant injury to his knee and lower back in 1997. The consequences of that injury are to be separated out from the claimed consequences made by the plaintiff in relation to the second injury.
13 The second issue was that the second injury, the subject of this application, was not a “serious injury”, because the plaintiff was able to return to full-time work as a truck driver, and continued in that employment as a truck driver until a subsequent injury, the third injury.
14 The third issue was that the plaintiff never had any treatment from doctors between 2008 until his third injury which occurred in June of 2011. This was a clear indication that the plaintiff was not suffering any consequences as a result of the second injury in 2005 to his back.
15 The fourth issue was that the plaintiff was unable to establish serious injury consequences for the accident which occurred in 2005, because his significant disability arose after, injuring his back in the June 2011 accident.
The statutory scheme
16 The application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”. In this case, the loss of body function is to the plaintiff’s lower spine.
17 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of, or in the course of, his employment on or after 20 October 1999;[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners (supra) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being “at least very considerable”;
(e) Sub-section 38(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) In conformity with Barwon Spinners & Ors v Podolak,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss (38). I have applied the principles set forth therein in reaching my conclusions in this application;
[3]Supra
18 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
19 I have read the exhibited material and taken into account the evidence of the plaintiff in this case in arriving at the decision.
20 In cases such as this one where the plaintiff has a series of accidents or injuries, then the Court is required to determine the following:
(i) identify each injury;
(ii) delineate the impairment consequences of each injury;
(iii) if the injury is an aggravation of a previous injury, then determine if the consequences of the aggravation qualify as a “serious injury” under the Act;
(iv) the plaintiff has the onus of establishing that a comparison between the plaintiff’s condition before 1 July 2005, and after that injury, and then assess what the additional impairments are as a result of the second injury; and
(v) none of the four separate injuries referred to can be accumulated. The injury and the consequences to the plaintiff from the second injury have to be assessed to be a “serious injury” as defined by the Act in its own right.[4]
[4]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
The Plaintiff’s background
21 The plaintiff was born in 1961 and at the time of the application, was fifty-five years of age. The plaintiff currently lives in a defacto relationship with Ms Kerri Sitters. The relationship commenced in 2006.
22 The plaintiff has a number of adult children from a previous marriage and none of his children live with him and Ms Sitters.
23 The plaintiff’s education was completed at Year 9.[5] The plaintiff describes himself as being semi-illiterate and that he left school in order to commence work.
[5]PCB 19
24 The plaintiff’s initial work was on a dairy farm. He then left that employment to work on his father’s sheep farm which was in New South Wales.[6] In 1990, the plaintiff commenced his career as a truck driver. In the two years between 1990 and 1992, the plaintiff worked as a shearer. In 1992, he returned to truck driving and stayed in that employment until 1995. For the 1995 year, the plaintiff returned to shearing as his employment.
[6]PCB 19
25 In 1996, the plaintiff commenced work with Neil’s Transport Pty Ltd.[7] On 26 July 1997, the plaintiff was injured in the course of his employment with Neil’s Transport Pty Ltd.
[7]PCB 19
26 The plaintiff described his injury at Neil’s Transport Pty Ltd in the following terms:
“I was injured on 26 July 1997 in the course of my employment with Neil’s Transport when I fell from a ladder, which was fixed to the prime mover of a truck which I was unloading. When I slipped, I fell between the tipper trailer and the prime mover. I sustained various injuries, particularly to my right leg. I also sustained an injury to my lower back, which caused me some discomfort and incapacity, but resolved over a period of time.”[8]
[8]PCB 20, paragraph [8]
27 After the injury in 1997, the plaintiff was off work for approximately three years. He had a common law proceeding in relation to that first injury[9] and purchased a service station in Echuca in 2000. He conducted the service station for two years and then, in 2002, decided to buy a truck which he was going to operate himself. Shortly after purchasing the truck, the plaintiff was injured in an unrelated assault matter. As a result of the assault, he was unable to work for a period of some six months.[10]
[9]Garner v Neil’s Transport Pty Ltd (ACN 007 205 272) (CI-98-03234)
[10]PCB 20
28 On 16 January 2004, the plaintiff commenced work with the defendant, Leitchville Transport Pty Ltd. His initial employment was that of a truck driver. Unfortunately, in October 2004, the plaintiff lost his license for a period of eleven months but continued his work with the defendant as a yardman.[11]
[11]DCB 18-19
Injury with the Defendant
29 The plaintiff was injured in the course of his employment with the defendant on 1 July 2005. The plaintiff was working as a yardman unloading a truck at the defendant’s premises in McMillans Road, Leitchville. The plaintiff and three other employees were to unload a container which had aluminium panels in it, used for the construction of livestock crates. The container was moved to the rear of the semitrailer and with two employees on the ground and two on the trailer in order to tip the container from the rear of the semitrailer. In the process of tipping the container off the back of the semitrailer, the plaintiff injured his back when the whole of the weight of the container was taken by him when his fellow employee lost his grip on the container. The plaintiff immediately felt pain in his lower back.[12]
[12]PCB 17-18
30 The plaintiff rested for a short time and then continued working on that day so that he would not seize up.[13] The plaintiff noticed that he had a tingling sensation in his legs as a result of the severe pain in his lower back.
[13]PCB 18
31 On 6 July 2005, the plaintiff attended upon his general practitioner and was given a WorkCover Certificate. The plaintiff was certified as unfit for employment for a period of some ten months until August of 2006, when he commenced a return to work program with his employer.[14]
[14]PCB 19
32 The plaintiff was sent for a CT scan of his lumbosacral spine on 7 July 2005. The conclusion of the CT scan result was:
“Small disc herniations at L4/L5 and L5/S1 levels.”[15]
[15]PCB 44
33 The plaintiff was treated with painkilling medications, including Panamax, Tramadol and Nurofen. Ultimately, the plaintiff resigned his position with the defendant in October 2006.[16]
[16]PCB 19
34 The plaintiff commenced employment with Turvtrans Pty Ltd. He then changed his employment to Rocbrix Pty Ltd. Both of those jobs were as truck drivers. On 1 July 2007, the plaintiff commenced employment with Linebac Pty Ltd as a truck driver. His employment was permanent full time. He remained in that employment until he was injured on 20 June 2011. The plaintiff described the accident of 20 June 2011 in the following manner:
“On 20 June 2011, I was struck in the back, by a bar which is part of the mechanism which operates the curtains, which cover either side of the semitrailer. I received a blow to the back, which caused me to drop to my knees. I was however able to stand up and resume the work which I had been undertaking. I have been receiving Work Cover payments since the last week of June 2011.”[17]
[17]PCB 20, paragraph [12]
35 The plaintiff attended for retraining and rehabilitation in September 2012 at a Coles Express Service Station in Shepparton. The plaintiff was unable to continue with that rehabilitation due to a stroke. He has not regained paid employment since that time. The plaintiff subsequently, in April of 2017, suffered a severe cerebrovascular stroke which has now rendered him totally incapacitated.[18]
[18]Transcript (“T”) 40
Medical treatment
36 The plaintiff, after the second injury, attended at the Cohuna District Hospital and was seen by Dr Greg Sendecki. His attendance at that hospital on 3 July 2005 was due to a back injury. The general practitioner diagnosed lumbar vertebral dysfunction. The plaintiff was treated with non-steroidal analgesics (NSAIDs), rest and physiotherapy. As previously noted, on 7 July 2005, the plaintiff underwent a CT scan. That scan displayed a disc herniation at L4-L5 and L5-S1.[19]
[19]PCB 48
37 The plaintiff was treated with large quantities of painkillers. He stated that the medications included Panamax, Tramadol and Nurofen. I note that on 25 July 2006, the plaintiff was prescribed Panadeine Forte, 30 milligrams twice per day.[20]
[20]Exhibit 3
38 The plaintiff gave evidence that he was consuming fifty to sixty Panamax per week whilst he was employed as a truck driver between the second and third injuries. The plaintiff’s general practitioner, Dr Greg Sendecki, ceased the Panamax prescriptions on 23 October 2007.[21]
[21]Exhibit 3
39 The plaintiff was cross-examined about the taking of medications between his return to work in 2006 and the third injury. In the course of his evidence, I asked the plaintiff about his consumption of fifty to sixty Panamax a week in light of the fact that his doctor had told him not to use them. The plaintiff’s answer was: “Well, I had to dull the pain.”[22]
[22]T43, L26-28
40 I accept the plaintiff’s evidence that he consumed large quantities of Panamax on a weekly basis in order to continue with his employment as a truck driver between his return to work in 2006 after the second injury and before the third injury. I accept the plaintiff’s evidence that he stated that after his general practitioner had ceased prescribing the Panamax that he then purchased the Panamax over the counter and arranged for his defacto partner to do the same. I also accept the plaintiff’s evidence that he wore a magnetic belt on his lower back in order to assist him with the reduction in his symptoms. Whilst this is not recognised medical treatment, I accept that the plaintiff viewed it as a way of treating his symptoms.
41 The evidence in this case is that the plaintiff did not receive any further general practitioner treatment in respect of his lower back between 2008 and the third injury in 2011. I accept that the plaintiff attended his general practitioner for other ailments in that period. I find that the plaintiff was continuing to take the painkilling medication of Panamax and that he was not going to receive any further medical treatment in relation to his back that would jeopardise his employment as a truck driver.
42 The plaintiff attended for assessment for a medical certificate pursuant to the TruckSafe industry accreditation program. This assessment was performed on 23 August 2010. In that questionnaire, the plaintiff noted that there was no illness or injury to his neck, back or limbs.[23] I note for the sake of completeness, the plaintiff did not complete an answer to the question: “Have you ever had any other serious injury, illness, operation or been in hospital for any reason?”[24] In that same assessment, the plaintiff described his back movement as being “normal”.[25] The plaintiff, in his evidence, stated that those answers were incorrect.
[23]DCB 102
[24]DCB 102
[25]DCB 103
43 I accept the plaintiff’s evidence concerning his ingestion of Panamax, the wearing of the magnetic belt and the modification to his work practices in the period between 2006 when he resumed truck driving until the occurrence of the third injury, which occurred on 20 June 2011. The pain medications and the modification to his work allowed him to continue in the role as a truck driver for that period.
Medical opinions
The Plaintiff’s doctors
Dr Greg Sendecki, General Practitioner
44 Dr Sendecki has prepared one report in respect of this application, dated 12 July 2007. I note that the plaintiff ceased attending at Dr Sendecki’s Cohuna Clinic on 23 October 2007.[26]
[26]Exhibit 2
45 Dr Sendecki is the general practitioner that first saw the plaintiff after the first injury. Dr Sendecki saw the plaintiff at the Cohuna District Hospital on 3 July 2005.[27] Dr Sendecki made a diagnosis of lumbar vertebral dysfunction. A CT scan was ordered and it revealed a small disc herniation at the L4-5 and L5-S1 level.
[27]PCB 48
46 In March of 2006, the plaintiff was certified fit to return to full duties. Dr Sendecki noted that he complained of some back discomfort after heavy physical activities.[28]
[28]PCB 48
47 On the occasion of the plaintiff’s last visit to Dr Sendecki on 23 October 2007, the plaintiff’s prescriptions for Panamax, 500 milligrams, were ceased.[29]
[29]Exhibit 3
48 At around this time, the plaintiff changes his residence to Shepparton and his general practitioner to the Wyndham House Clinic.
Wyndham House Clinic
49 The plaintiff has seen a number of general practitioners at the Wyndham House Clinic in Shepparton. His predominant general practitioner is Dr John Guymer. Dr Guymer prepared a report dated 29 May 2017 in respect to this application. In his report, Dr Guymer refers to the treatments by Dr Prashanth Narasimhaih in respect of the plaintiff’s attendance on 21 June 2011. Dr Guymer notes the history that the plaintiff was originally injured to his lumbar back on 1 July 2005. Dr Guymer then notes the treatment in respect of the plaintiff’s injury to his back following the third injury.
50 Dr Guymer’s opinion was that the third injury rendered the plaintiff unfit to drive a truck and he would not be able to renew his truck licence due to his current health state.
51 I note for completeness that Dr Guymer referred to the plaintiff’s overall health, including chronic obstructive airways disease, and transient ischemic attacks and a stroke on 9 May 2017 were the basis for the deterioration in the plaintiff’s health.[30]
[30]PCB 63-64
Mr Steven Leitl, Orthopaedic Surgeon
52 Mr Leitl prepared two reports in respect of the plaintiff’s injury, dated 16 August 2011 and 5 September 2011. Mr Leitl was asked to conduct a medico-legal assessment of the plaintiff on behalf of the workers’ compensation insurer. At the time of his first assessment of the plaintiff, which occurred on 16 August 2011, some two months after the third injury to the plaintiff, Mr Leitl’s opinion was as follows:
“I consider that his employment injury of 1 July 2005 continues to materially relate to his current back condition because he never recovered fully after that and I consider that the more recent back injury represents an exacerbation of his previous back injury.”[31]
[31]PCB 69
53 I note in that same report that Mr Leitl has recorded that the plaintiff had not been taking regular medications prior to the third injury. This notation is in contradiction to the plaintiff’s sworn evidence and his affidavit evidence. I note that Mr Leitl took a history from the plaintiff at the time of the examination that he was on Tramal, 400 milligrams per day, and Panamax, eight per day.
54 Mr Leitl was asked by the workers’ compensation insurers to divide up, for want of a better way of describing it, the percentage of the three incidents of injury to the plaintiff’s back up until that time. Mr Leitl stated his opinion as follows:
“… Based on all the available evidence my best estimate of apportionment would be that 0% would be attributable to the February 1997 incident because there appeared to have been virtually full recovery following that incident and with no significant effects on his work capacity after he had returned to work some two to three years later and there would then be 60% attributable to the July 2005 incident and 40% to the June 2011 incident.
I would consider the back injury of 1 July 2005 the most significant because following that injury, even though he was able to get back to work he then had ongoing symptoms of intermittent back pain, then worsened by the more recent injury.”[32]
[32]PCB 76-77
55 I note that Mr Leitl states this opinion about the 2005 injury to the plaintiff’s back as being more significant, even though he had a history from the plaintiff that he was not taking any medication prior to the third injury.
Mr David Wallace, Neurosurgeon
56 Mr David Wallace prepared four reports in respect of this application. The reports were dated 26 May 2014, 14 November 2014, 20 January 2015 and 20 June 2017.
57 In his first report dated 26 May 2014, Mr Wallace gave the following opinion in respect to the second injury:
“No, I do not believe he had a history of significant back problems prior to the accident in 2005.
…
I think the back injury which he suffered in 2005 was the major factor leading to his present level of incapacity. The incident in June 2011 was an exacerbation of the injuries received in the accident of 2005.”[33]
[33]PCB 81
58 In his report dated 14 November 2014, Mr Wallace was answering questions in respect of the relative contribution of the second and third injuries to the plaintiff. He states as follows:
“I hold to my previously expressed opinion. I certainly think the back injury suffered in 2005 is the major factor leading to his present level of incapacity related to his back. … .”[34]
[34]PCB 84
59 Mr Wallace was asked to review the plaintiff on 5 June 2017. In that report, Mr Wallace confirmed his previous conclusion that the back injury at work on 7 July 2005[35] remains a significant factor in the plaintiff’s ongoing back problems.[36] He stated that the back injury and incapacity was permanent. The assessment by Mr Wallace also included matters relating to the vascular problems and stroke that the plaintiff had subsequent to the second and third injuries. It is the opinion of Mr Wallace that the plaintiff’s incapacity principally arises from the second injury.
[35]This appears to be a typographical error and should be 1 July 2005
[36]PCB 88
Dr Graeme Doig, General Orthopaedics and Trauma Surgeon
60 Dr Doig prepared two reports in respect of this application, dated 30 November 2015 and 18 April 2017. Dr Doig’s opinion was as follows:
“It is my opinion that Mr Garner’s current problems are a result of his initial incident of 2005 and the further event of 2011, which not only caused further damage to the L4/5 intervertebral disc, but aggravated the pre-existing condition of 2005.”[37]
[37]PCB 96
61 In his later report, Dr Doig gave the following opinion:
“Since the incident, Mr Garner’s lower back condition did improve with time but failed to fully resolve. He did manage to return to his pre-injury occupation as a full time truck driver, although he required the on-going use of analgesics. It is therefore my opinion that the incident of 07.07.2005 [scil 01.07.2005] remains a significant contributing factor to his on-going issues. Mr Garner was not requiring analgesics prior to this incident.”[38]
[38]PCB 100
62 Dr Doig’s opinion was that the third injury simply aggravated the plaintiff’s second injury.[39]
[39]PCB 101
The Defendant’s doctors
Mr James Prior, Consulting Surgeon
63 The defendant relied on a report of Mr James Prior dated 18 February 1998. This report was a report prepared for the purposes of the 1997 claim for damages. In that report, Mr Prior noted that the plaintiff had suffered a lot of back pain and this had not settled.[40] In his Opinion section of that report, Mr Prior noted:
“He has a lower back problem of magnitude, which is linked with the original accident and the subsequent use of crutches for a prolonged period.”[41]
[40]DCB 96
[41]DCB 40
64 The plaintiff, in his evidence, stated that his back problem was related to the use of crutches as a result of the injury to his knee in the first injury. In the first injury, the plaintiff’s major injury was to his knee and there was an operation on that part of his body which is not relevant to this application.
Mr Brian Davey, Consultant Orthopaedic Surgeon
65 Mr Brian Davey’s report is dated 21 April 1998. Mr Davey had a history from the plaintiff that he had some low-back pain as a result of the first injury. Mr Davey’s opinion was that the plaintiff’s problems with his soft tissue injuries to his lumbar and cervical spines would normally be expected to settle.[42]
[42]DCB 43-44
Ms Judi Bilkey, Psychologist and Dr Claire Campbell, Vascular and Endovascular Surgeon
66 The defendant also tendered the reports of Ms Judi Bilkey dated 29 March 1999 and Dr Claire Campbell dated 29 August 2011 and 5 June 2014. I do not consider that any of these reports are of direct relevance to the matters I have to decide in this application.
Dr Gary Davison, Occupational Physician
67 Dr Gary Davison prepared a report dated 3 July 2012. Dr Davison’s report is directed predominantly at the impact of the third injury. Dr Davison noted that the plaintiff’s general practitioner had completed WorkCover Certificates with the diagnosis of acute chronic lower back pain. These Certificates related to periods of time some four years before August of 2011.[43]
[43]DCB 53
68 Dr Davison’s opinion was as follows:
“The claimant has chronic lower back pain. It is unclear as to whether there was a significant lower back condition prior to 20.6.2011. There was a specific traumatic injury, and the claimant has had significant impairment of back function since that time.”[44]
[44]DCB 56
69 I find that the chronic lower back pain referred to by Dr Davison has been with the plaintiff from the time of the second injury.
Mr Michael Shannon, Orthopaedic Surgeon
70 Mr Shannon prepared a report dated 24 September 2014 for the purposes of this application. Mr Shannon took a detailed history in respect of the three alleged back injuries occurring in 1997, 2005 and 2011.
71 In respect of the first injury and its effect on the plaintiff’s back, Mr Shannon stated:
“As described, it would not appear that the injury to his back was a serious one and I cannot find evidence to suggest that he sustained a significant disc prolapse.”[45]
[45]DSB 94
72 Mr Shannon then went on to consider the second and relevant injury, as he described it, in 2005. Mr Shannon noted that the second injury resulted in mechanical back pain, and noted that the CT scan at the time showed a disc protrusion at L4-5 and L5-S1.
73 Mr Shannon then noted that the plaintiff engaged in physiotherapy, hydrotherapy and medication over a ten-month period and was able to resume his normal occupation as a truck driver. He noted that the plaintiff continued his work for five to six years, and stated that his back was “OK, although it would tend to ache in cold weather or under load”.[46]
[46]DCB 94
74 Mr Shannon then noted the effect of the third injury, when the plaintiff was struck in the back by a bar, and he had some recurrence of pins and needles in his legs following this injury and he never returned to work.[47]
[47]DCB 94
75 Mr Shannon concludes as follows:
“The information available does not suggest that any major new injury occurred in 2011, but simply an aggravation of what was essentially age related degenerative changes associated with multi-level disc degeneration, disc bulging and in particular, spinal canal stenosis at L4‑5.”[48]
[48]DCB 95
76 The preponderance of the medical evidence is that the most significant injury to the plaintiff’s back occurred in the second injury. The doctors that have reviewed the plaintiff since the third injury all refer to it as an aggravation of a pre-existing back condition. This is borne out by the radiological evidence in this case where the CT scan taken in 2005 indicates disc protrusions. Further, I accept the plaintiff’s evidence that he managed to continue with his work after he resumed his work after the second injury by the ingestion of large amounts of Panamax and the wearing of a magnetic belt. I also accept that the plaintiff adjusted his method of work so as not to overload his low back in the course of his employment as a truck driver between 2006 and 2011 when he was ultimately injured in Sydney.
The credit of the Plaintiff
77 The defendant, through its counsel, attacked the credit of the plaintiff on the basis that he was not giving a full and accurate history about his ability to work and participate in other activities between the second and third injuries. In part, counsel for the defendant relied upon the affidavits of the plaintiff’s partner, Kerri Sitters.
78 Kerri Sitters swore two affidavits, dated 6 June 2012 and 24 March 2016. I note that both of these affidavits were prepared by the plaintiff’s previous solicitors, J G Thompson, Solicitor, in Shepparton.
79 A plain reading of these affidavits would indicate that the information set out in the affidavits relates to the circumstances and symptoms suffered by the plaintiff after the injury to his back in the third injury.
80 In the first affidavit, Ms Sitters sets out that the plaintiff did complain to her about soreness in his lower back from the time when she first met him in 2006 and onwards. She also noted that the plaintiff consumed very large amounts of Panamax.[49] This evidence confirms the plaintiff’s evidence that he continued to experience pain in his lower back and took large amounts of Panamax to control that pain.
[49]PCB 38-39
81 Ms Sitters went on in her affidavits to set out the activities of the plaintiff between 2006 and 2011 that the plaintiff could perform but no longer could do so after the third injury. In part, this is confirmation of the plaintiff’s position. The plaintiff managed to continue with his work as a truck driver up until the third injury in 2011. The doctors described that injury as an aggravation of his pre-existing back injury. Ms Sitters’ affidavit material was not tested by way of cross-examination. The plaintiff cannot cross-examine Ms Sitters. The defendant would not want to cross-examine Ms Sitters, because the format and information enclosed in her two affidavits was as beneficial to the defendant as it could possibly expect.
82 In respect of the plaintiff himself, there was no surveillance conducted on him and, consequently, none was shown during the course of this application.
83 I have had the advantage of observing the plaintiff in the witness box and being cross-examined very skilfully by Mr Jens QC. I assess the plaintiff to be a very simple and straightforward man. It is often said in these sort of applications that a plaintiff is a stoical plaintiff. Mr Garner is the perfect example of a stoical plaintiff. Mr Garner has continued to work despite suffering very serious levels of pain and taking medication to ameliorate that pain. He has continued to do so from 2006 until 2011 when a final insult to his back took things out of his hands. By that I mean he was willing to continue to work despite suffering great and significant pain in order to make sufficient funds to support his family.
84 After the third injury, the plaintiff was unable to return to truck driving. The final insult to his health was the increasing vascular difficulties. The stroke that he suffered in April 2017 has taken away all of his capacity to engage in any employment whatsoever. He is now reduced to a Disability Pensioner status and requires the use of a walking stick.
85 The law in this state in relation to these types of applications is clear, that a stoical plaintiff is not to be penalised because of his stoicism when it comes to considering the consequences of an injury to that plaintiff.
Consequences for the Plaintiff
86 In respect of the second injury, I find and accept that the plaintiff has suffered significant consequences. I have considered the consequences and accept that they are, and were, very considerable consequences to him. The consequences of the 2005 injury to his lower back continue until the present day, and will continue into the foreseeable future. The third injury was simply an aggravation of the pre-existing serious injury to the plaintiff.
87 The consequences are as follows:
Pain
88 I accept that the plaintiff has suffered very considerable pain as a result of the second injury. The pain has been to his lower back and been consistent throughout the time since the injury. The level of pain has required the plaintiff to take large amounts of pain medication. The levels of pain medication were of such concern to his general practitioner that he ceased prescribing the pain medication in 2007. Nevertheless, the plaintiff continued to take large amounts of pain-relieving medication and that is a clear indicator that he was suffering pain.
Medication
89 I accept the plaintiff’s evidence that he was taking fifty to sixty Panamax tablets per week in order to ameliorate his pain. He described the taking of the medication enabled him to continue with his truck driving activities. I accept that evidence and find that the need for the plaintiff to take such significant amounts of medication is a very considerable consequence of the injury to his back in the second injury.
Sleep
90 The plaintiff gave evidence that his sleep was interrupted as a result of the pain to his back and that he was unable to get a proper night’s sleep. He gave evidence that on occasion his sleep would be broken due to the pain in his back. I accept that the interruption to the plaintiff’s sleep and his inability to get a good night’s sleep is a very considerable consequence as a result of the injury to his back in the second injury.
Conclusion
91 I conclude that the first injury had little or an insignificant impact upon his lower back. In respect of the vascular difficulties resulting in the plaintiff having a series of strokes resulting ultimately in his incapacity to the extent of a Disability Pensioner status, it is not relevant to the assessment of the second injury. Based on the reasons previously outlined in this Judgment, I find that the plaintiff has suffered a “serious injury” as defined under the Act as a result of the second injury. I find that the third injury was an aggravation of the plaintiff’s previous serious injury which resulted in him being unable to continue with his work as a truck driver.
92 As a result of these findings, the loss of income claim made by the plaintiff is not made out, because he was able to continue with his employment between 2006 and 2011 with no loss of income. The third injury is the cause of the plaintiff’s loss of ability to work as a truck driver. The application by the plaintiff for loss of earnings capacity certification for serious injury is dismissed.
93 For the above reasons, I grant the application made by the plaintiff for serious injury certification on a pain and suffering only basis arising from the second injury on 1 July 2005.
94 I will hear the parties on costs.
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